Live from Music Row Wednesday morning on The Tennessee Star Report with Michael Patrick Leahy – broadcast on Nashville’s Talk Radio 98.3 and 1510 WLAC weekdays from 5:00 a.m. to 8:00 a.m. – host Leahy welcomed New York City attorney Akiva Cohen to the newsmakers line to explain why Trump’s Big Tech lawsuit may not have jurisdiction in Florida due to state action as outlined in Facebook’s contractual agreement.
Leahy: We are delighted to welcome to our newsmaker line our good friend Akiva Cohen. He is an attorney who specializes in First Amendment, media, and Big Tech issues. Welcome, Akiva Cohen.
Cohen: Good to be back, Michael. How have you been?
Leahy: I’ve been great. I’ve been great. So I want to get your opinion. We were at Donald Trump’s news conference with America First Institute in Bedford, New Jersey, when he announced this lawsuit against Facebook, Twitter, and Google and their CEOs.
Now, our friend Vivek Ramaswamy, the very successful billionaire who lives in Cincinnati, has written an article in The Wall Street Journal.
I’m guessing you may not agree with this headline, but I’ll read the headline and get your response. Headline: Trump Can Win His Case Against Tech Giants. There’s ample precedent for calling it state action. But what is your reaction to that?
Cohen: Yes, I do disagree with it. There are a couple of things. Number one, procedurally that’s going to happen first, right out of the gate.
Each of these companies has terms of service that say, if you’re going to sue us over something that happens with your account, you’ve got to do it in the Northern District of California and not in Florida, which is where the former President Trump filed these things.
And that’s important because the Northern District of California, just a week and a half ago or so, actually addressed this exact issue.
There was a vaccination information group called Child Health Defense that had filed a lawsuit against Facebook for taking their page down on the exact same theory that Section 230 and the sort of comments of public officials made Facebook’s decision to take them down a state action.
And what the courts said just a week and a half ago was, no, that’s not a state action. The fact that the government may have a regulatory interest in a particular area doesn’t transform private action into state action.
So President Trump’s lawsuit has a real big problem, just from a recent precedent that it’s going to have to deal with because it’s going to get moved to California on the basis of those terms of service and the contracts that everybody who signed up for it agreed to.
And there was a judge in that district who just decided this issue in a way that’s not good for him. I think it’s unlikely that it’s going to have a different outcome in this case.
Leahy: Akiva, Crom Carmichael is our all-star panelist, has a question for you.
Cohen: Sure.
Carmichael: Akiva, I think what you said is Trump filed his lawsuit in the state of Florida. So it will go before a court in Florida, will it not? I mean, to begin with? In other words, will the first hearing be in Florida, or will the first hearing be in California?
Cohen: It depends on what you mean by first hearing. So he filed in federal court in Florida. The very first thing that Facebook and Twitter and Google will do is they’re going to file what’s known as a motion to transfer.
And they’re going to say, look, before we get into the merits of all of this, there’s a contract governing it. The contract that everybody signed when they joined our website says, if you’re going to sue us, you have to sue us in the Northern District of California.
Those clauses are enforceable and they’re routinely enforced, and you should move it to California. Now, I don’t frankly know if President Trump’s lawyers are going to put up any sort of fight in response to that for the simple reason that there really isn’t anything to fight about.
Courts enforce clauses like this all the time. Fighting against it will be a losing move.
But if he does fight it, then the very first hearing will be if the Florida judge feels like he needs a real argument, which I think would be unlikely, would be in Florida about whether or not the case has to go to California. A Florida judge would not be looking at the substance.
Carmichael: When you say judges do this ‘all the time’, do you mean regularly and most of the time? Or do you really mean truly all the time?
Cohen: No. Truly, truly all the time. If you have a contract that says we are going to litigate this and any disputes between us in a particular location, judges will not get into the substance unless you’re going to argue that you were somehow defrauded into agreeing to that particular choice of venue.
If you’re alleging that somehow somebody lied to you, you didn’t actually sign the contract, and your signature is forged, that they’ll decide.
But if you agree, yes, this is a contract that I signed that had this provision, there is a chance that any judge will say that’s not enforceable.
It happens every time. Literally, every time this issue comes up. If there’s a venue clause and one of the parties files in a different place and the other party tries to enforce it, that’s not to say there isn’t some crazy judge out there who might do something different on some random occasion.
I don’t know every case in the country, but it would be a massive shock to everybody if it did not.
Carmichael: Let’s assume that it gets moved to California and then it gets tried in California and the courts out there rule in favor of Big Tech. It will get appealed. At that point, it gets appealed to a higher court…
Leahy: The Ninth Circuit.
Carmichael: The Ninth Circuit. And let’s just say the ninth Circuit sides with Big Tech. If the U.S. Supreme Court takes it, then the decision is not being made by what I would describe as a liberal-leaning court – meaning the district court in San Francisco and the Ninth Circuit. It would be then decided at the Supreme Court level.
And there is a precedent at the Supreme Court level for claiming that companies that are benefited. And that’s what the other gentleman from Cincinnati said. He listed two cases.
Leahy: Norwood v. Harrison 1973 was one of those cases. And then Railway Employees’ Department v. Hanson in 1956 were the cases that he referenced. And I guess Crom’s question to you is, Akiva, are you buying that?
Cohen: And the answer is no. And the court in California actually just recently analyzed all of that. And frankly, it was persuasive.
It’s worth reading the Children’s Health Defense versus Facebook. And there are a couple of issues here, right? So, number one:
If anything that gets a government benefit and anything that they do is state action, then frankly, every corporation that exists is bound by the First Amendment because the corporate form is itself a government benefit.
We have laws that say you can incorporate and you get limited liability as a result of it. And so this is a benefit that’s created by the government. It doesn’t exist other than, as a matter of law. Every corporation would be bound.
Carmichael: Now wait. Not every corporation is covered by Section 230 and has the protections of Section 230.
Cohen: Correct. If the theory, Crom, is that just getting a benefit from the government – meaning you got some special benefit from the government, therefore, anything you do is government action – If that’s the case, there’s no reason why the benefit of Section 230 would be any more special or triggering of that rule to the benefit of the corporate form in the first place.
Carmichael: Well, then did the two core cases that were cited in the other article, why did they go the way they did?
Cohen: Those cases were not Section 230 cases.
Carmichael: I know that. But they were still on the greater question that you’re trying to raise. You’re trying to say Section 230 isn’t the dispositive question here. You’re trying to say that if the government helps anybody, then it helps everybody, and therefore Section 230 doesn’t matter. But these other two cases were not about Section 230, but they did argue that because the government helped those particular companies that the judges ruled differently than the way that you’re arguing.
Cohen: I don’t believe that’s accurate. And it’s been a little bit since I looked at those cases. But if I remember correctly, those cases weren’t about the government giving somebody a benefit.
It was about the level of government control of the specific action. So, for example, in the railway case. If I’m remembering correctly, what it was was the government said that rail companies were required to conduct alcohol testing if I’m remembering correctly, on employees and crashes.
And what the Supreme Court said was, look, people have a Fifth Amendment right against self-incrimination. They have rights, First Amendment rights.
And if the state couldn’t have its police force do this because of people’s constitutional rights, it can’t pass a law that says you private company need to do this because that’s the same thing.
And the problem here with applying that theory to Section 230 – there are two major problems. Number one is just in general. If you look at Section 230, it doesn’t mandate any specific content or any specific content rules. You could have a site that says I want to ban all discussion.
Leahy: Hey, Akiva. We’re running a little bit of time here. But what a great discussion. By the way, Akiva, let me just say this one thing. If I’m ever in trouble in New York State, I am hiring you as my attorney. (Carmichael laughs)
Cohen: I appreciate that. Thanks for having me, guys. (Carmichael laughs)
Leahy: All right. Thanks, Akiva.
Listen to the third hour here:
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Tune in weekdays from 5:00 – 8:00 a.m. to the Tennessee Star Report with Michael Patrick Leahy on Talk Radio 98.3 FM WLAC 1510. Listen online at iHeart Radio.
Photo “Akiva Cohen” by Kamerman, Uncyk, Soniker & Klein
Live from Music Row Monday morning on The Tennessee Star Report with Michael Patrick Leahy – broadcast on Nashville’s Talk Radio 98.3 and 1510 WLAC weekdays from 5:00 a.m. to 8:00 a.m. – host Leahy welcomed New York City attorney Akiva Cohen to the newsmakers line to discuss the dynamics of the Section 230 law citing how it is constitutional in relation to the recently proposed state law by North Dakota legislators that would allow citizens to sue Facebook, Google, and Twitter.
Leahy: We are delighted to welcome you to our newsmakers line to joining myself and all-star panelist Crom Carmichael Mr. Akiva Cohen. He is an attorney in New York City and a graduate of Columbia Law School where he was a Harlan Fisk Stone Scholar. Pretty smart guy. And also drew my interest because Mr. Cohen has commented on a proposed North Dakota law that would allow residents to sue Facebook, Google, Twitter, and all those folks. Mr. Cohen welcome to the Tennessee Star Report.
Cohen: Thank you, Michael. Thank you for having me on. I appreciate you guys making me jealous right at the start of this.
Leahy: Why are we making you jealous?
Cohen: You had me holding on listening to the radio through your weather report. It’s not going to hit 64 degrees here in New York for another several months.
Leahy: Akiva, let me do this. Now I know you practice law in New York City but you are a smart guy. We have no state income tax here in Tennessee (Cohen chuckles) and we have lots of great law firms. You all should think about coming down sometime. Crom wants to say something to you.
Carmichael: But yeah, the first test is, you know when we get into the back and forth on the question at hand is you’re going to have to defend living in New York. (Laughter)
Cohen: This is by far the most pleasant place in the world to be a Jets fan and there are not really many places where it’s pleasant to be a Jets fan. So, you know.
Leahy: All right. Well look, so caught our attention because you know, one of the themes of this program is that right now there needs to be pushback from state governments against the usurpations of the national federal government. that’s our key theme of this program. And we saw an article about six state legislators in North Dakota who had introduced a state law that’s not under consideration that would allow residents of North Dakota to sue Facebook and Google and Twitter if they censor them. And you actually don’t think that that’s got much of a chance. Tell us your argument.
Cohen: So there are a couple of problems. The first problem is just a purely straightforward technical legal problem, which is the Constitution has a supremacy clause. The supremacy clause says that if the federal government steps in and regulates something in an area where it has authority state governments can’t vary from that.
So for example, if the federal government says look, for purposes of interstate commerce we want to make sure that money and goods can flow through freely and therefore no state can impose a tariff on steel. You can’t have a state that comes in and says, well, you know what federal government that’s very nice, we’d like to impose a tariff on steel. That won’t be allowed.
The immunity section that these North Dakota legislators are trying to override is Section 230 of the Communications Decency Act which says that basically, internet companies can allow comments on their websites. And if they moderate user content on their website, they can’t be sued for what they do in moderating it. and in that section it expressly says and this preempts any contrary state law.
This is Congress making a policy decision that this is best for Interstate Commerce and no state law can vary from it. So right at the outset, you can’t have a state law that says well, we don’t care federal government, we’re going to create a state cause of action to sue for the very thing that you said nobody can be sued for and by the way, where pre-empting state law. So it’s dead in the water. the question then becomes aside from the fact that is dead in the water legally the straightforwardly, as a policy matter is this really something that we want? And to me, that’s the more interesting question.
Leahy: And Akiva, if you could hold with us. When we come back we’re going to push back…
Carmichael: On the part that he says is the most important policy matter. I like that. That would be a good discussion.
Leahy: Well just as a heads up. I don’t know if you’ve heard of Vivek Ramaswamy and Jed Rubenfeld, but they had a contrary view in The Wall Street Journal will talk to you about that after the break.
(Commercial break)
Leahy: I’m going to read an excerpt brief excerpt from an article in The Wall Street Journal. I don’t know if you read it by Vivek Ramaswamy and Jed Rubenfeld. Have you seen this article?
Cohen: I’ve seen bits and pieces of it. I’m looking forward to hearing.
Leahy: I’ll read the excerpt and get your reaction to it. Conventional wisdom holds that technology companies are free to regulate content because they are private and the first amendment protects only against government censorship. That view is wrong. Google, Facebook, and Twitter should be treated as state actors under existing legal doctrines using a combination of statutory inducements and regulatory threats Congress has co-opted Silicon Valley to do through the back door what government cannot directly accomplish under the Constitution.
It is axiomatic the Supreme Court held in Norwood versus Harrison in 1973 that the government ‘may not induce encourage or promote private persons to accomplish what is constitutionally forbidden to accomplish.’ That’s what Congress did by enacting section 230 of the 1996 Communications Decency Act. Well, there it is. What’s your reaction Akiva?
Cohen: So my reaction is it fundamentally misunderstands Section 230. So Section 230 was enacted not in an attempt to induce anybody to censor things but to protect decisions that tech companies had already made that there was certain content they didn’t want on their servers. And essentially what had happened was somebody sued CompuServe because on a CompuServe message board where one CompuServe user had posted something defamatory about another CompuServe user.
And CompuServe in that litigation basically said look, we don’t have anything to do with that. This is between two users. We didn’t post it. We didn’t write it. We didn’t review it. And what the court there said was, yeah, but when people post things that for example offered to sell cocaine or offer to sell drugs you delete that stuff. So you have the capacity to moderate and you didn’t moderate it here.
So we are going to hold you liable for the private defamation that one of your users committed against another user. And this was a pretty big problem. And it’s a big problem because people keep misunderstanding what the internet is because we write stuff on the internet. So people think about the internet the same way they think about books or newspapers.
But really the internet Michael is more like your talk radio show. Users post things on websites without the website being able to review them in advance and decide if this something I want to be published or not. And I assume you guys have a seven-second delay or something on here in case I lose my mind and start cursing. But I got to ask you. If you were in a situation where you didn’t have a seven-second delay and any time a caller called your radio show they could say something that would expose you to millions of dollars in liability and legal costs. How many callers do you think you would have on your radio show?
Carmichael: Let me jump in. This is Crom Carmichael. I think you’re approaching it from one direction but that’s not what the issue is today. The issue today is not somebody posting something and then somebody else wanting to sue. The issue today is that these large companies are picking and choosing who they would like to be able to express themselves on their platforms.
And that’s an entirely different thing that is proactively telling Candace Owens a black female that she will not have a Twitter account. It’s telling Candace Owen, a Black female she cannot have a Facebook page. It is telling Brandon Straka a gay person that he cannot have a Twitter account because they don’t like what he is saying. So that’s the issue. The issue today is they are discriminating against particular points of view rather than doing what Section 230 is supposed to do. And that is to make them so that they can allow all parties to debate with each other and not be sued.
Cohen: Sure. But now you’re making a different argument than the argument in The Wall Street Journal. The Wall Street Journal piece said well, this is really state action because really what happened was Congress enacted Section 230 because it wanted private companies to have the ability, and to specifically they wanted them to engage in viewpoint discrimination.
So really when these private companies are engaging in viewpoint discrimination and saying we don’t want this type of topic or this type of commentary on our website it’s not really private. It’s really Congress doing it through other means and my point is it wasn’t Congress doing it through other means. That’s not what Section 230 was enacted to do.
As you said, what Section 230 was enacted to do was to provide a liability shield that enabled private companies to decide for themselves what type of content they want to have on their website. That to me is a core First Amendment right that anybody who cares about free speech should defend. One of my heroes from way before I ever became a lawyer was David Goldberger.
I don’t know if you guys know the story of David Goldberger, but he’s the Jewish ACLU lawyer who defended the Nazis marching through Skokie, Illinois in the 70s when Skokie, Illinois said look, we really don’t like Nazis. We don’t want them coming through. So we’re just going to ban them not because of any sort of neutral principle, but because they’re Nazis and we don’t like Nazi speech.
And it fell to a Jewish ACLU lawyer to say look, I don’t like their speech. But you the government have no right to say that they can’t engage in it just like any other group. And what that really comes down to is I may not like the moderation decisions that any particular private platform or website is making. They may not be the decisions that I personally would make. But it is critical from any First Amendment standpoint and from a free-speech standpoint that private parties get to make those decisions.
Carmichael: My argument is that members of Congress have threatened Big Tech with taking away their 230 protections if they don’t stifle speech that the members of Congress disagree with. And Big Tech has done exactly what those governments threateners demanded that they do. And so therefore that makes them a state actor.
Cohen: There the response to that isn’t to then say oh, well, then we should take away the 230 protection. It’s to reinforce that and to push back on the people who are saying you make your moderation decisions the way we want you to make moderation decisions, or if you don’t we’re going to open you up to all sorts of lawsuits. That would be the problem.
Carmichael: Does Candace Owens a Black person does she have a right to sue Big Tech for de-monetizing her?
Cohen: No, absolutely not. Not if she’s Black or if she’s White.
Carmichael: I thought we had federal anti-discrimination laws. And if we do and if she was being barred because of a protected characteristic, so if a tech company was barring somebody from their services because they were Black. Because they were gay. Because they were male. Because they were female. It doesn’t matter which one. If that was the basis for kicking them off the platform then that would be something that you could bring an anti-discrimination suit on.
Leahy: The basis is they don’t like what she’s saying.
Carmichael: So what you’re saying is these platforms are free to tell people who have a different point of view from the owners that the owners of these sites have a right to take away their first amendment rights?
Cohen: 100 percent.
Leahy: On that note Akiva. We have more to discuss. I think you’re also saying 230 is not unconstitutional?
Cohen: 100 percent.
Leahy: All right, we will continue the dialogue. Please come back because we’re going to load with more arguments of logic and perhaps law then and see what you have to say with them. Thanks, Akiva for joining us.
Cohen: My pleasure. Thank you, guys.
Listen to the full third hour here:
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Tune in weekdays from 5:00 – 8:00 a.m. to the Tennessee Star Report with Michael Patrick Leahy on Talk Radio 98.3 FM WLAC 1510. Listen online at iHeart Radio.
Photo “Akiva Cohen” by Kamerman, Uncyk, Soniker & Klein
